Review of streaming TV issue urged

Posted Thu, December 12th, 2013 9:08 pm by Lyle Denniston

Arguing that the television broadcasting industry is waging a “war of attrition” on a new form of viewer access to free TV, on Thursday Aereo, Inc., urged the Supreme Court to take on the issue now and settle it. Its filing in response to an industry challenge was filed in time for the Court, if it grants review, to decide the case this Term.

The case is American Broadcasting Companies v. Aereo, Inc. While its victory in a federal appeals court was the correct outcome, Aereo contended, the broadcasters “have signaled their intention to wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business.”

So, the Brooklyn-based company said, it “believes it is appropriate for this Court to grant review” and then to uphold the Second Circuit’s ruling that the company is not infringing on the copyrights that the TV companies and programmers have in their broadcasts.

The two sides in this high-stakes legal fight agree that the issue is the meaning of the federal Copyright Act’s language. Under the Act, the owner of a protected creation has an exclusive right “to perform the copyrighted work publicly.”

But the two sides do not agree on the issue that they want the Court to decide.

The industry put the question this way in its petition: “Whether a company ‘publicly performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.”

Aereo, in its response, said that version was “not faithful to the district court’s findings and its undisputed facts.” So, Aereo put the question this way, asking the Court to adopt this version:

“Whether Aereo ‘perform[s] publicly,’ under Sections 101 and 106 of the Copyright Act, by supplying remote equipment that allows a consumer to tune an individual, remotely located antenna to a publicly accessible, over-the-air broadcast television signal, use a remote digital video recorder to make a personal recording from that signal, and then watch that recording.”

Put that way, the question would focus on the right of consumers to get TV shows using a technology that, at its base, is not much different from recording a show on a home video machine.

The Aereo brief makes a strong assault on the potential harm it sees to the concept of free broadcast TV. The brief said: “The essential bargain that [the industry] made to obtain, for free, public spectrum worth billions of dollars was that, once they have broadcast their programming, consumers have a right to receive and to view that programming using an antenna and to copy that programming for their personal use.”

Aereo said that the industry has pursued its copyright claims in five cases in three states. The claims have failed in each court where a decision has emerged, the brief said. The extensive record made in the Aereo case, the brief said, makes it the best case for the Justices to review.

The industry will have a chance to file a reply brief before the case is scheduled for initial consideration by the Justices. That could be sometime in January, because after next Monday’s public session, the Court will be in recess for the holidays.

Email Digest Sign-Up

Merits Case Pages and Archives

Major Cases

Trump v. HawaiiThe president has lawfully exercised the broad discretion granted to him under 8 U. S. C. §1182(f) to suspend the entry of aliens into the United States; respondents have not demonstrated a likelihood of success on the merits of their claim that Presidential Proclamation No. 9645 violates the establishment clause.

South Dakota v. Wayfair, Inc.Quill Corp. v. North Dakota and National Bellas Hess Inc. v. Department of Revenue of Illinois -- which held that a state cannot require an out-of-state seller with no physical presence in the state to collect and remit sales taxes on goods the seller ships to consumers in the state -- are overruled.

Carpenter v. United StatesThe government’s acquisition of Timothy Carpenter’s cell-site records from his wireless carriers was a Fourth Amendment search; the government did not obtain a warrant supported by probable cause before acquiring those records.